First Amendment? Not If There Are Children Involved!
Yes, it's that question again: "But, what about the chilllldrennn?!"

Lenore Skenazy blogs at Free Range Kids about a bill being considered in New Jersey:

It would outlaw the photographing or videotaping of kids in situations in which "a reasonable parent or guardian would not expect his child to be the subject of such reproduction."

How's that for vague? So, suddenly, a kid in the background of your park pictures is taboo if his dad is mad you're taking a pic? Or maybe you're breaking the law if you're videotaping your child's pool party and the other parents haven't signed a waiver? Since when is photography a crime? The camera really does NOT capture anyone's soul. Promise!

...If photographing kids becomes illegal, we will have entered a new kind of society. A kind of totalitarian one, where our everyday rights have been stripped away, supposedly for our "protection."

As a blanket law this is a bad idea. It is trying to do the job that parents should do themselves. When a car was driving down the street and a passenger was taking pictures of my kids, I called the police. Why? That seemed creepy - and it is my job to watch out for that. I do not expect the state to write laws that let me off the hook for raising and protecting my own children.

Peter
at May 9, 2011 7:36 AM

Maybe people should refrain from panic until they get past the first paragraph of a press story:

But the Assembly Judiciary Committee did not vote on the bill (A3297), and members acknowledged it may be overly broad and may not stand up to constitutional scrutiny if it’s not amended.

Chance of passage of the bill "as is" = 0%. Where did this crazy idea come from? Take a look at New Jersey's current criminal statute covering "video voyeurism" N.J.S.A. 2C:14-9

b. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.

Swap out "the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact" with "image of a child" and, presto, you have a new bill to introduce with minimal work! Until someone with two gray cells to rub together takes a second to think about it, and realizes that there's quite a bit of difference between images of people's private parts or sex acts and images of children. Oops.

Fortunately, not all bills become statutes.

Dale
at May 9, 2011 7:53 AM

".....we will have entered a new kind of society. A kind of totalitarian one, where our everyday rights have been stripped away, supposedly for our "protection."

Opps...we entered that kind of society some time ago!

nuzltr2
at May 9, 2011 8:50 AM

Heh, there is an interesting article on Salon by a creep who takes pictures of kids in strollers who she thinks are too old to be in strollers, and then posts pics online making fun of them.

While I agree that many parents use strollers far too long, taking their pics and mocking the kids on a public forum is rather twisted.

NicoleK
at May 9, 2011 9:10 AM

Worst case scenario. Some uber-perv takes a pic of your six year old in a one-piece swimsuit, takes it home, squirrels it away on his hard drive, and spanks it a few times a day.

And what does this do to your six year old? Well, nothing.

Photographing your child, even with this intent, is not harmful to your child. Outlawing photography is simply not justifiable.

Patrick
at May 9, 2011 9:31 AM

These prohibitions are big in the UK as well. But there doesn't seem to be a concrete rational for them. It boils down to what Patrick stated, that the 'idea' makes parents uncomfortable.

If such photos are taken pursuant to a crime, then the criminal act encompasses the picture taking. You can't legally distribute them. You may not even be legally able to possess them if they could be construed as erotic or pornographic. So what new protection is offered here?

Teal
at May 9, 2011 9:53 AM

Additional evidence that as we have vanquished most of the real risks our ancestors faced (famine, fatal epidemics, marauding hordes, etc.), we become hypervigilant about "risks" that, on balance, are nothing of the sort.

Spartee
at May 9, 2011 10:22 AM

We already have this situation in the DC area. Both of my kids' schools have sent home and emailed instructions that under no circumstances are we allowed to post pictures online or email of our child at any school event if there are other children in said picture. Which means pretty much any picture we take of our kid is off limits.
Says them. I talk to the individual parent of the child and ask if it's OK for me to post the pics, and in every single case, they have said yes. These are 6 year olds...not ex-Mafiosa in the Federal Witness Protection Program.

My dentist used to have a wall with pictures of her young patients, and she would put a sticker beside the pictures for each dental visit with no cavities. Cute idea and quite harmless, especially since individual parents could easily object to having their child's picture up if they didn't want it there.

She had to take the pictures down. She said if she kept them up she would have to have parents sign a waiver and deal with new rules under Canada's Privacy Act so she decided it was too much trouble.

Kathryn
at May 9, 2011 12:21 PM

Hey!

Since we've determined on this blog that the possession of "pornography" - in quotes because the definition is apparently flexible - does not indicate a rapist, let us apply some logic to determine who really is one:

Sixteen high-definition photographs are lined up, of a human female in exactly the same pose. they've been taken at 1-year intervals. She's sitting, feet out in front of her, wearing very brief panties and no top. The view is frontal, a foot off the floor, from about ten feet away.

She's 21 in the last photo, and just 6 in the first one. In all cases, her hair is in pigtails. Disregard hair color - you can't make a law based on the image specifics to that degree.

Notice I haven't mentioned any degree of attractiveness.

This has been uncomfortable to write, but there's a principle here. There is no joy in this. Remember, as you voice an opinion, that you would codify a definition, for use as a law, under which someone would be branded a sex offender for life.

Don't forget you could apply a scale to the possessor of such a photograph, depending on relationship to and age difference w/r/t the subject of the photo.

In what case is the possessor of such a photo a criminal?

How is the court to determine the age of the person in the photo?

Sight unseen, how can you tell the difference between the girl at 17 and at 18?

Now: make the pictures anime drawings/paintings, of the same detail. Now what?

There is a disconnect here I am addressing. Pics of adult women ≠ criminal. Pics of some "juvenile", or immature women = criminal.

How is that?

Don't forget to address the questions.

Radwaste
at May 9, 2011 3:19 PM

This is an interesting thread. The law would be crazily vague and would stifle normal behavior.

...On the other hand, when I was younger, people used to take my picture all the time. It did creep me out. Often, I would just see the flash of a bulb when I was walking down the mall. One time, a little boy told me that his dad had a whole room filled with pictures of me by the pool that his dad had taken from his window. I never did meet this man.

If I found out that someone had a collection of pictures of my child, it would bother me. I certainly don't know how to make a law about this kind of thing. I would suspect that if someone took more than 20 secretive photographs, they would be treading on stalker territory.

This raises good questions. Where do we draw the line?

Right now, at school, I may not take a picture of a child unless his or her parents have signed a waiver.

Jen
at May 9, 2011 4:30 PM

Think about the absurdity of this, people are saying you have no right to a chemically, or virtually rendered reprduction of a single momnets capture of photons bouncing off of everything around you as viewed from the point of your cameras lens because someone somewhere at some time in the future might be "uneasy"

How long until allowing your eyes to absorb those same photons is made illegal?

I'm hardly a helicopter parent and no paranoid. But. . .I don't like it. I don't like that my kid's picture can be plastered all over facebook and youtube and flickr just because she happens to be in the same place as someone whose parents have no boundaries or sense of privacy when it comes to their kids or mine. These pictures are out there forever. It's not like a news photo or even participating in a public event. You go anywhere these days and someone too young to give his or her consent can end up a public figure of sorts.

I don't think it's a matter for legislature but maybe one of manners Amy could address in her coming book. For my part, I always ask the parents of the children at birthday parties and park functions whether they mind my posting photos. And if they do, I don't.

Because that's what is claimed: someone with a picture of an "underage" person is a criminal, cut, dried, cut-off-his-junk scum.

Don't even bother with a trial, because sex is more important than murder!

Radwaste
at May 9, 2011 7:40 PM

"I don't like that my kid's picture can be plastered all over facebook and youtube and flickr just because she happens to be in the same place as someone whose parents have no boundaries or sense of privacy when it comes to their kids or mine. These pictures are out there forever."

And, as has been shown repeatedly, your kids are still more at risk of sexual assault from a family member than from strangers.

This is just a symptom. Do you stop Spokeo, or Google Street View now?

Because even the authorities are filming your precious. Some of you don't even object to your kids being put through the scanner, or being patted down, at the airport. I guess it's different when you (not you specifically, the public) want something.

Radwaste
at May 9, 2011 7:46 PM

@Radwaste. As I wrote, I'm not paranoid. I'm not worried about kidnap or sexual assault or some stranger wanking off to a photo of my child. I'm concerned that private personal images are out of not just my control, but hers, before she's even old enough to have a say-so -- and that no one seems to think that common courtesy might call for ASKING before posting pictures of another person.

Google Street View, by the way, will remove photos with individuals in them, if they complain, or identifiers such as license plate numbers. You can also opt out of Spokeo. Right there you've got more courtesy than most people shooting pictures/videos of other people's children are willing to give children.

elementary
at May 9, 2011 9:12 PM

"You can also opt out of Spokeo."

Guess again. Spokeo refreshes after some time passes. You have to go back repeatedly.

And it looks to me like no one will address the serious question about the series of photos above.

I think that's because no one wants to think about anything other than what they want.

Radwaste
at May 10, 2011 2:40 AM

Raddy, I'm going to take a shot at it...

In the first example you gave, I think the key issue is the girl being topless. If she had something covering her breasts, I think there would be no issue. But given what you presented: Part of it is who took the photographs, and for what purpose. Was the person who took them a parent or legal guardian? If so, then I think it's legally iffy to charge them with anything. Up until the age of 18, they do not have to get consent. (I'm assuming that after the age of 18, the girl consented.) However, I do think it's clearly illegal to *distribute* the under-18 images. If the photos were taken for some medical reason, then distribution of any of them would be illegal without consent, and even then there would be limited circumstances and special provisions applicable to medical use (such as, say, use in a medical journal).

My take on child porn is that what the law needs to focus on is the production of it, not necessarily the distribution. Why do we have laws against child porn? Because of the harm it does to the children involved. I would argue that most of that harm occurs during the production; at the time the images are distributed, most of the harm has already been done. Not to say that the law should not go after people who are, knowingly, major distributors of child porn. But busting the distributors doesn't do much to protect children because it doesn't stop the producers. And as your point out, the guy who has downloaded some photos doesn't have any way of telling that one of his photos is of a girl who is only 17, not 18.

(Now, how does my statement jive with what I said about the parent distributing the photos of the girl you mentioned? It comes down to intent. If the parent takes the photos but never shows them to anyone, then we cannot make a guess about how the photo sessions actually went down or what the intent was. But if the parent distributes the photos, and especially if he/she does so for money, we might could assume that producing child porn was the intent, although we'd still have to know more about the particular case.)

In the case of the anime: If the material consists of drawings/paintings/CGI/whatever, and is not a literal rendering of a real photo, then I think there is no issue. Going back to my principle about protecting children from the harm of them being used to produce porn, in the case of anime and cartoons, no actual children were involved in the production. So the First Amendment applies.

So Rad, how does this square with what you were thinking? I'm not asking to be sarcastic; I want to know. I'm particularly interested in where you came up with your first example -- is that something you thought up, or did you take that from an actual case?

Cousin Dave
at May 10, 2011 8:11 AM

Cousin, it's not a case making me ask this so much as it is the observation of the general difficulties people are having.

Recently we heard the story of a girl arrested for sexting her own picture - despite her being underage. Nobody could figure out what to do with the technology.

In the past, Ed Meese was directed to find evidence of criminality resulting from the influence of porn, and he couldn't. Amy posted recently that it apparently lowers the crime rate.

Yet when it comes to "the underage", these things magically take a sinister turn. The possessor of a photo, regardless of its source, is expected to know the age of the subject and act accordingly, and is a heinous criminal.

All this is more important than murder to a lot of people. You can kill somebody and be released, never to appear on a national registry.

Let's recap what the possessor of a series of photos is supposed to know:

1) The age of the subject in each photo.

2) The source of the photo.

3) The intent of the photo.

4) That the photo - actually, only some of them - must be controlled, prevented from distribution.

5) That the age of consent to actual sex is different from that required to release the photo.

There isn't any way to codify this. There isn't any way, really, to do anything but brand all men pedophiles because they like their 30-something girlfriend to wear ponytails, and that's really a secret code for "I wanna do your toddler."

Culturally, it's a sickness every bit as bad as an individual's when that person ruins a young person's life, because it sets up the entire nation as guilty until proven innocent - and then - well, no. Never innocent, no matter what!

-----

For a while, the term "community standards" appeared in Supreme Court rules about pornography, which came to the Court because nobody could define it.

That's what the series-of-photos idea is supposed to convey: how do you tell when you've broken a law anyway, as opposed to just offending someone?

How do you call out "the community" anyway? Sweden has a huge problem with Pirate Bay, and most any picture of a human female is a capital offense by Sharia law.

But there are two parts to this. What do you really want to do - then, how will you get it done?